A decision is expected today on whether the discovery by police of 78 kilograms of marijuana in a pickup will be allowed as evidence in an unusual trafficking trial.
If Red Deer Court of Queen’s Bench Justice Wayne Renke rules the initial search that led to the marijuana seizure in November 2013 was illegal the case will collapse against Michael Jackson, 53, who has been charged with possession for the purpose of trafficking.
Crown prosecutor John Lee and Calgary defence lawyer Hersh Wolch made their arguments in court on Monday as to whether to allow the critical marijuana evidence. The marijuana was found vacuum-sealed in plastic bags inside eight doubled garbage bags in the back of Jackson’s pickup, which was being held in the Rocky Mountain House RCMP detachment garage at the time.
The truck had been seized by police for examination because it was involved in a fatal accident on Hwy 11 west of Rocky Mountain House a day earlier. Jackson was the driver but was not charged in connection with that incident.
A 14-year-old pedestrian from Eden Valley was hit while she was standing or walking near an SUV that was parked by the side of the highway about 40 km west of Rocky.
When Jackson got out to help he was attacked by the occupants of the SUV, one of whom smashed his windows. He drove off and the SUV occupants put the girl in the back and drove towards Rocky, where their vehicle hit the ditch.
The girl was pronounced dead at the scene.
Jackson was pulled over further down the road and he was taken to hospital for treatment.
A pair of police officers testified the marijuana was found as they searched the garage for the source of a “faint” marijuana smell. They thought it might have been from an exhibit improperly stored in the area.
After failing to find anything amiss, they looked inside the canopy of the pickup truck and saw garbage bags. They opened two closed garbage bags, one inside the other, and discovered marijuana buds sealed in plastic.
At that point, realizing the implications of the discovery they stopped and obtained a search warrant to search the truck. After uncovering the rest of the marijuana, Jackson was charged.
Wolch argued, however, the police had no right to search the truck without a warrant.
Jackson, who had not been charged with any crime, had the right to expect that his property would not be searched without due cause, Wolch said.
“He has that right and it was flagrantly ignored.”
Wolch pointed to testimony that one of the officers involved in the search didn’t consider it an official search, and the other didn’t know under what authority he was searching.
“It’s simply not good enough to say I wasn’t searching, or I didn’t know what my authority was.”
The Crown prosecutor said Jackson’s expectation of privacy was limited considering his vehicle was in police custody and was to be thoroughly examined within a day or two.
Lee said while the search likely went “one step too far” it was a mistake that happened unexpectedly as they searched for the source of the marijuana smell.
When the officers checked inside the garbage bag it wasn’t in the context of a drug investigation, and as soon as they realized what they had found they stopped further searching until they had a warrant, he said.
As well, based on a faint smell of marijuana in a police garage, it’s unlikely a search warrant application would have been approved or held up in court.
Justice Renke said his decision will amount to deciding who gets the “advantage of the error” by police, the state or Jackson. His ruling is expected on Tuesday morning.